HKSAR v. CHO KWOK ON

DCCC 112/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 112 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty before me to one charge of trafficking in a dangerous drug, namely 40.13 grammes of a powder containing 21.01 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The facts admitted by the defendant revealed that at about 6.41 pm on 14 December 2011, a police officer saw the defendant acting furtively at the ground floor, Hong Lok Lau, Moon Lok Dai Ha, No 50 Hoi Pa Street, Tsuen Wan, and intercepted him and conducted a body search upon him, wherein 3 plastic bags containing the dangerous drugs the subject matter of the charge were found inside the right front pocket of the jeans worn by the defendant.  He admitted that he knew the 3 plastic bags contained ketamine which he had bought from an unknown male for HK$2,100.  He worked as an apprentice cook but was unemployed at the time and was living on his savings.  The dangerous drugs was examined and found to be 40.13 grammes of a powder containing 21.01 grammes of ketamine. The street value was estimated to be HK$4,374. He possesses these dangerous drugs for the purpose of trafficking.

3.  Section 109A of the Criminal Procedure Ordinance, Cap 221, provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  This provision, however, does not apply to offences of trafficking in dangerous drugs, which are excepted offences.

4.  I adjourned sentence until today, so that I could have the advantage of a Background Report and Training Centre Report from the Correctional Services Department.  I did, however, emphasize to the defendant that I was keeping all options of sentence open to myself including a custodial sentence.  These reports are now before me and I have carefully considered their contents.  I have also borne in mind all that has been urged upon me on behalf of the defendant.

5.  I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention.  Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard, and in most circumstances, for offences of this nature, they best serve the interests of the community as a whole.  The appeal courts have made clear that save in very rare cases, a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs.  Here, the quantity is substantial.  The defendant would have been fully aware of the gravity of what he was doing and the risks that would be involved if he was apprehended.

6.  The defendant is now aged 16 years.  He is the younger child of his parents and lives with his family.  He dropped out of school in 2010 without finishing Form 4.  He did not have a steady job but had worked at many casual jobs and had an unstable income.  In order to make some fast money to sustain his entertainment expenses, he started to traffick dangerous drugs in early December 2011 until his arrest for the present offence on 14 December 2011.  The Defendant has been confirmed to be mentally and physically fit for detention in a training centre and he is considered suitable for detention in a Training Centre.

7.  A lenient sentence is sought on behalf of the defendant.  His parents are both in court today to show their support for the defendant.

8.  Save for his plea of guilty, there is really little else in mitigation before me.

9.  In the Secretary for Justice v Hii Siew Cheng & Anor [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking 10 to 50 grammes of ketamine, a term of imprisonment of between 4 to 6 years is called for.

10.  In the instant case, the ketamine involved is 21.01 grammes.  For this quantity, I would consider a starting point of 4½ years, that is 54 months, to be appropriate if a term of imprisonment were to be imposed.

11.  Although the offence to which the defendant pleaded guilty is an excepted offence in schedule 3 of the Criminal Procedure Ordinance, Cap 221, and section 109A is not applicable, the Court must still consider how best it is to deal with him, given the nature and circumstances of the offence, the interest of the community, the defendant’s character and previous conduct and such.

12.  In Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12, the Court of Final Appeal examined the circumstances under which a training centre order is to be imposed and what the relevant considerations are, and I have borne these in mind.

13.  In this case, after considering all the mitigating factors put forth, in particular, the defendant’s clear record at the time of the present offence, his background, and his relatively young age, and based on the information available, I have no doubt that the defendant is susceptible to peer influence and he lacks the ability to resist temptation and to observe discipline.  If he were to be left on his own, I believe there is every likelihood that he would continue down his present track to a point of no return.  In the interests of the community and the defendant himself, and for the prevention of crime, in my view it is better that while it might still be possible to guide him back on track and for him to become a useful member of the community that this chance should be seized and acted upon.  I agree with the reporting officer that a period of disciplinary training coupled with the statutory supervision upon release would be beneficial to the defendant.  Such training and supervision would not be available if a term of imprisonment were to be imposed.

14.  Having considered all the circumstances of the offence and the defendant himself and, in particular, the age of the defendant, and what the Training Centre can offer to young offenders such as the defendant, I am not minded to send the defendant to prison.  I propose to accept the recommendation of the Correctional Services Department and send him to a Training Centre.  He is sentenced to the Training Centre.